In re Marriage of Stockwell

          City and County of Denver District Court No. 12DR1367 Honorable Catherine A. Lemon, Judge

          Announced June 27, 2019 Joseph Cody Stockwell, Pro Se

          Jennifer Lynn Dees, Pro Se

          OPINION

          NAVARRO, JUDGE

         ¶ 1 In this proceeding concerning the allocation of parental responsibilities (APR) for L.D-S., Jennifer Lynn Dees, the child's mother, appeals the district court's order denying her motion to vacate a 2013 order giving majority parenting time to Joseph Cody Stockwell, the child's legal but not biological father. Dees contends that the court erred because it issued the APR order without first inquiring into the child's possible Indian heritage as required by the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2018). Dees is right. In agreeing with her, we clarify that (1) a legal father under Colorado law is not necessarily a "parent" for purposes of ICWA and (2) an APR to a legal father who does not qualify as a "parent" under ICWA is a "child custody proceeding" under ICWA.

         ¶ 2 Because the APR to Stockwell here constituted a child custody proceeding and the court did not comply with ICWA, we reverse the order denying Dees's motion and remand for further proceedings.

         I. Factual and Procedural History

         ¶ 3 L.D-S. was born during the marriage between Dees and Stockwell. That marriage has since been dissolved. Although Stockwell is not L.D-S.'s biological father, he was declared his legal father under the paternity presumption in section 19-4-105(1)(a), C.R.S. 2018. On October 2013, the district court entered an APR order that named Stockwell the primary residential parent for L.D-S. and limited Dees's parenting time to weekends. Over the next few years, the court expanded Dees's parenting time to include holidays, school breaks, and two weeks of summer vacation.

         ¶ 4 In 2015, Dees asked the court to set aside the October 2013 APR order. She alleged that she had obtained a DNA test result from L.D-S.'s biological father that would rebut Stockwell's paternity presumption. A magistrate denied her motion, and the district court adopted the magistrate's order.

         ¶ 5 In 2017, Dees filed a pro se motion titled "Motion for 25 U.S.C. 1914 'ICWA' Violations," arguing that federal law required L.D-S. to be returned to her care (hereinafter, ICWA motion). She attached to the ICWA motion various orders (including the October 2013 APR order) and a letter asking the district court to invalidate all parenting orders, return L.D-S. to her custody, and comply with ICWA. She asserted in her letter that L.D-S. was "Choctaw and Wailaki on my side only" and that the APR to Stockwell was a "foster care placement." The court denied the motion as untimely.

         II. ICWA Compliance

         A. Basic Principles

         ¶ 6 ICWA is intended to protect and preserve Indian tribes and their resources, and to protect Indian children who are members of or are eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3) (2018); People in Interest of M.V., 2018 COA 163, ¶ 10. ICWA recognizes that Indian tribes have a separate interest in Indian children that is equivalent to, but distinct from, parental interests. M.V., ¶ 10. Thus, in a proceeding in which ICWA may apply, tribes must have a meaningful opportunity to participate in determining whether a child who is a subject of the proceeding is an Indian child and to be heard on the issue of the applicability of ICWA. B.H. v. People in Interest of X.H., 138 P.3d 299, 303 (Colo. 2006).

         ¶ 7 ICWA applies when an Indian child is the subject of a "child custody proceeding," which includes any action that could culminate in "foster care placement." 25 U.S.C. § 1903(1) (2018); 25 C.F.R. § 23.2 (2018); People in Interest of K.G., 2017 COA 153, ¶ 14. An "Indian child" is any unmarried person who is under age eighteen and is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Under ICWA, a tribe is entitled to intervene in child custody proceedings involving its children, and a tribal court is the preferred jurisdiction for such proceedings. K.G., ¶ 6.

         ¶ 8 At the start of every emergency, voluntary, or involuntary child custody proceeding, the district court must ask each participant whether he or she knows or has reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a) (2018); K.G., ...